Fused Solutions, LLC

National Labor Relations Board - Board Decisions

Nov 26, 2014

361 N.L.R.B. 1016 (N.L.R.B. 2014)

1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Fused Solutions, LLC and United Food and Commer-
cial Workers, District Union Local One. Cases
03–CA–098461 and 03–RC–083193
November 26, 2014
DECISION, CERTIFICATION OF
REPRESENTATIVE, AND NOTICE TO
SHOW CAUSE
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND SCHIFFER
On May 6, 2013, the Board issued a Decision and Or-
der in this proceeding, which is reported at 359 NLRB
No. 118 (not reported in Board volumes). Thereafter, the
Respondent filed a petition for review in the United
States Court of Appeals for the District of Columbia Cir-
cuit.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. Thereafter, the Board
issued an order setting aside the Decision and Order, and
retained this case on its docket for further action as ap-
propriate.
The National Labor Relations Board has consolidated
the underlying representation proceeding with this unfair
labor practice proceeding and delegated its authority in
both proceedings to a three-member panel.
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. The Board’s May 6, 2013 decision states
that the Respondent is precluded from litigating any rep-
resentation issues because, in relevant part, they were or
could have been litigated in the prior representation pro-
ceeding. The prior proceeding, however, also occurred at
a time when the composition of the Board included two
persons whose appointments to the Board had been chal-
lenged as constitutionally infirm, and we do not give it
preclusive effect. Accordingly, we consider below the
representation issues that the Respondent has raised in
this proceeding.1
1 In addition to raising certain representation issues, the Respondent
argues that the complaint was ultra vires because the Acting General
Counsel of the NLRB did not lawfully hold the office of Acting Gen-
eral Counsel at the time he directed that the complaint be issued. We
reject this argument for the reasons stated in Benjamin H. Realty Corp.,
361 NLRB 918 (2014).
The Respondent also argues that the complaint was ultra vires be-
cause the Regional Director did not lawfully hold the office of Regional
Director for Region 3 at the time she directed that the complaint be
In its response to the Notice to Show Cause, the Re-
spondent reiterates its objections to the election alleging
that the Union’s representatives (a) told employees that
not voting would be counted as a “no” vote, and (b) gave
new employees the impression that they were not eligible
or that their votes would not be counted.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
Respondent’s objections to the election held July 26,
2012, and the hearing officer’s report recommending
disposition of them. The election was conducted pursu-
ant to a Stipulated Election Agreement. The tally of bal-
lots shows 19 for and 9 against the Petitioner, with 6
challenged ballots, an insufficient number to affect the
results.
The Board has reviewed the record in light of the ex-
ceptions,2 has adopted the hearing officer’s findings and
recommendations, and finds that a certification of repre-
sentative should be issued.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for United Food and Commercial Workers,
District Union Local One and that it is the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit:

All full-time and regular part-time level 1, level 2, and
level 3 customer service support technicians employed
by the Employer at its Potsdam, New York location;
excluding all office clerical employees, confidential
employees, guards, and professional employees and
supervisors as defined in the Act.

NOTICE TO SHOW CAUSE
As noted above, the Respondent has refused to bargain
for the purpose of testing the validity of the certification
of representative in the U.S. Courts of Appeals. Alt-
hough Respondent’s legal position may remain un-
issued, and that she continues to not lawfully hold the office. We reject
this argument as well. Under the Act, complaints are issued in the
name of the General Counsel and with his authority. The Respondent
does not suggest that the complaint in this matter was issued without
the authority of the then-Acting General Counsel. Moreover, the Re-
gional Director for Region 3 was initially appointed on February 27,
2009, and her appointment was ratified on July 10, 2010, at a time
when the Board had a quorum. Finally, in the instant case the com-
plaint was actually issued by Acting Regional Director Paul J. Murphy,
and the Respondent does not challenge his authority to act.
2 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have carefully
examined the record and find no basis for reversing the findings.
361 NLRB No. 119

FUSED SOLUTIONS, LLC 1017
changed, it is possible that the Respondent has or intends
to commence bargaining at this time. It is also possible
that other events may have occurred during the pendency
of this litigation that the parties may wish to bring to our
attention.
Having duly considered the matter,
1. The General Counsel is granted leave to amend the
complaint on or before December 8, 2014, to conform
with the current state of the evidence.
2. The Respondent’s answer to the amended complaint
is due on or before December 22, 2014.
3. NOTICE IS HEREBY GIVEN that cause be shown, in
writing, on or before January 12, 2015 (with affidavit of
service on the parties to this proceeding), as to why the
Board should not grant the General Counsel’s Motion for
Summary Judgment. Any briefs or statements in support
of the motion shall be filed by the same date.